Közbeszerzési Hatóság

9. §

Exceptions

9. §

(1)  This Act shall not apply to

  1. procurements in the fields of defence and security specified in a separate act of legislation,  with the proviso that such procurements shall be subject to the rules set out in a separate act of legislation; furthermore if the  procurement is also exempt from the rules set out in the separate act of legislation and in case of procurements subject to the exception specified in point (ba), the competent committee of the National Assembly has granted exemption from the rules set out in the separate act of legislation in its preliminary decision based on an initiative satisfying the conditions laid down in the separate act of legislation;[1]
  2. procurements which are not subject to point (a),

    (ba) if the application of the rules on public procurements would oblige Hungary to supply information the disclosure of which would be contrary to the essential interests of the country’s security,

    (bb) where the protection of the essential security interests, national security interests of Hungary, the protection of classified information or the special security measures needed cannot be guaranteed by the security measures that may be required in procurement procedures, and purchase of which is subject to an exemption from the application of this Act granted by the competent committee of the National Assembly in its preliminary decision based on an initiative satisfying the conditions laid down in a separate act of legislation;

  3. procurements realised pursuant to a separate procedure laid down in an international agreement or arrangement, if the international agreement or arrangement concluded in conformity with the TFEU with one or more third countries is intended for a purchase related to the joint implementation or exploitation of a project, with the proviso that the Commission shall be notified of the conclusion of the international agreeement or arrangement;
  4. procurements realised pursuant to a separate procedure laid down in an international agreement or arrangement, where the international agreement or arrangement relates to the stationing, passing through, deployment of troops (military forces), including in the case of units deployed (transferred), replaced to the operational area the purchases related to such deployment (transfer), replacement
  5. in cases where international law obligations require that the contracting authority realise the procurement according to a separate procedure prescribed by an international organization;
  6. procurements realised in accordance with rules specified by an international organisation or international financing institution, if the procurements concerned are fully financed by such organisation or institution or if the public contracts are co-financed for the most part by an international organisation or international financing institution and the parties agree on the application of procurement procedures other than those set out herein;
  7. procurements which are exclusively aimed at allowing the contracting authority to make available or utilize a public electronic communication network or the provision of one or more electronic communications services for the public (This amendment entered into force on 1 January 2017.)

  8. the contract concluded by a contracting authority under Article 5(1) with a legal person over which the contracting authority exercises a control similar to that exercised over its own organisational units, the contracting authorities jointly have decisive influence on setting the legal person’s strategic goals and on making key decisions relating to its operation; furthermore, the legal person in question is not exposed to any direct private capital participation and more than 80 % of its annual net turnover derives from the perfomance of contracts concluded or to be concluded with the controlling contracting authority or with any other legal person over which the contracting authority exercises control under this point;
  9. the contract concluded by a contracting authority under Article 5(1) with a legal person over which the contracting authority exercises joint control with other contracting authorities and the control in question corresponds to the one exercised over its own organizational units, the contracting authorities jointly have decisive influence on setting the legal person’s strategic goals and on making key decisions relating to its operation; furthermore, the legal person in question is not exposed to any direct private capital participation and more than 80 % of its annual net turnover derives from the perfomance of contracts concluded or to be concluded with the controlling contracting authority (contracting authorities) or with any other legal person over which the contracting authority exercises control under this point;
  10. the contract concluded by a contracting authority under Article 5(1) with another contracting authority or contracting authorities aimed at establishing cooperation between the contracting authorities concerned to carry out public service missions, provide public services or realize common objectives of general interest, with the proviso that not more than 20 % of the contracting authorities’ annual net turnover related to their cooperation activity derives from the open market;
  11. the supply, services or works purchased by the central purchasing body in a procurement procedure, on behalf of the entities for the benefit of which the public contract has been concluded by the central purchasing body, as well as the purchase of ancillary services provided by the central purchasing bodies.

(2) The provisions set out in paragraph 1(h) shall be applicable if the legal person controlled concludes the public contract acting as a contracting authority with the contracting authority which exercises control over it or with any other legal person controlled by that contracting authority under paragraph 1(h).

(3) The provisions set out in paragraph 1(h) shall be applicable, if the State is a member of the legal person controlled. In such cases, the conditions according to paragraph 1(h) shall be applicable to the legal entity exercising ownership rights (the body directed by the minister or, if applicable, by another person directing a central administrative body) as a contracting authority.

(4) As regards paragraph 1(i), all the contracting authorities concerned shall be represented in the decision-making bodies of the legal person controlled. Each representing person may represent one controlling authority, more than one or all the controlling contracting authorities. The interests of the legal person controlled may not be conflicting with the interests of the controlling authorities.

(5) The conditions set out in paragraph 1(h)-(i) shall shall be fulfilled throughout the full term of the contract. If the abovementioned conditions are no longer fulfilled, the contracting authority may and shall terminate the contract.

(6) For the purposes of paragraph 1(h)-(i), the counter value of public services provided to a third party on the basis of the contracts shall be regarded as deriving from the performance of those contracts regardless whether this counter value is paid by the contracting authority or by the person using the public service.

(7) For the purposes of paragraph 1 (h)-(j), where the annual net turnover is not applicable in the case of the given contracting authority, the share of the activities done for the contracting authority or any other legal person controlled by the contracting authority shall be established on the basis of the costs incurred in relation to the abovementioned activities in a period of three years prior to the conclusion of the contract. If data concerning a period of three years preceding the conclusion of the contract is not available, the contracting authority shall only show that the abovementioned data are credible, particularly by means of business projections.

8) This Act shall not apply to services in the following cases:

  1. contracts for the acquisition of existing buildings or other immovable property or for the acquisition of other rights on immovable property;
  2. any public contract awarded by an audiovisual or radio media service provider for the acquisition, development, production or joint production by audiovisual or radio media service providers of any programme intended for providing audiovisual or radio media services; as well as contracts for programme provision or broadcasting time that are awarded by any contracting authority to an audiovisual or radio media service provider; furthermore, contracts for the acquisition, development, production, joint production of any programme intended for providing audiovisual or radio media services and contracts for broadcasting time; (This amendment entered into force on 1 January 2017.)

  3. contracts for arbitration, mediation and conciliation services;
  4.  legal services having any of the following subject-matters:

    (da) legal representation of a client by a lawyer in judicial proceedings before the courts, an arbitration, administrative procedure, conciliation or mediation, as well as legal advice given in relation to any of the proceedings referred to above,

    (db) document certification services provided by notaries,

    (dc) legal services provided by trustees or appointed guardians designated by law or designated by a court, as well as other legal services which are carried out under the supervision of the designating court,

    (dd) legal services which consist of the exercise of official authority in the Member State concerned;

  5. financial services covered by CPV code 66100000-1 (from 66110000-4 to 66190000-8) and related to the issue, sale, purchase or transfer of other financial instruments or securities specified by the Act on Investment Firms and Commodity Dealers, and on the Regulations Governing their Activities, central bank services and operations conducted within the framework of the European Financial Stability Facility and the European Stability Mechanism; (This amendment entered into force on 1 January 2017.)

  6. credit contracts and loan contracts under the Act on Credit Institutions and Financial Enterprises;
  7. employment relationship, employment relationship of public officials, governmental officials, state officials or public servants, fellowship employment under the Act on Public Officials, relationship of governmental project evaluators, employment relationship of public prosecutors, judges, law officers and the professional staff of law enforcement bodies, as well as the professional, contractual and voluntary reserve staff of the Hungarian Defence Forces (This amendment entered into force on 1 January 2017.)

  8. civil defence and danger prevention for the protection of citizens, provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8; 98113100-9 and 85143000-3, except patient transport ambulance services;
  9. public passenger transport services by rail or metro;
  10. political campaign services covered by CPV codes 79341400-0, a 92111230-3 and 92111240-6, purchased by a political party in the context of an an election campaign;
  11. where the service is provided by a contracting authority under Article 5(1) or by an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a law or administrative decision, which is compatible with the TFEU;
  12. service contracts for research and development services which are covered by CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5, except where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs and the service provided is wholly remunerated by the contracting authority.

(9) This Act shall not apply to public contracts of a contracting entity providing services stipulated in Article 6(1)(e), if the public contracts are awarded for the following activities of the contracting entity: 

  1. added-value services linked to electronic postal services and provided entirely by electronic means (including the secure transmission of encrypted documents by electronic means, address management services, and transmission of registered electronic mail),
  2. financial services which are covered by CPV codes 66100000-1 to 66720000-3 and   financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, and operations conducted with the European Financial Stability Facility and the European Stability Mechanism, including in particular postal money orders and postal giro transfers,
  3. philatelic services, or
  4. logistics services (services combining physical delivery or warehousing with other non-postal functions).

(10) In procurements under paragraph 1(b), the contracting authority is entitled to manage personal data concerning clean criminal record.

(11)   Due to national security interest, the contracting authority under Article 5 (1) (a)-(c) may restrict the retrieval of the data of public interest or the data disclosed due to public interest, which is processed in relation to procurements specified in paragraph (1) (b) herein, by considering the significance of the public interest in accessing the data and in restricting the access, maximum until the expiry of ten years as of the production of the data[3].

(12)  Access to the following shall not be restricted:

a) the decision of the body proceeding within its sphere of duties and competence in relation to the procurement,

b) the identity of the successful tenderer of the procurement procedure, furthermore,

c) the title, subject, value, duration, the name of the parties of the contract related to the procurement

specified in paragraph (1) (b) herein in compliance with paragraph (11) herein[4].


[1] This amendment entered into force on 1 August 2016.

[2] This amendment entered into force on 1 July 2016.

[3] This amendment entered into force on 1 August 2016.

[4] This amendment entered into force on 1 August 2016.